Refusing to release records - excuse #13

I'm surprised that I keep learning of new excuses for refusing to release records, but I do. We are now on excuse number 13.

Another attorney contacted me today about an intransigent psychologist who refused to release MMPI-2 scores. He had declined to put them in the report, so they existed only in the computer-generated-interpretation produced by Pearson. His reasoning was that the CGI, including scores, were protected by copyright, so the attorney could not have them.

The problem with the 'copyright' excuse is that the use proposed by the attorney falls into the fair use exception, in copyright law. IOW, there is no copyright protection for what the attorney wants to do with it.

Further, I think that the argument that the scaled scores are protected is unsustainable. That's the basis of the expert's opinion, so that information must be discoverable by the other side.

We are so willing to protect the patient against harmful breaches of confidentiality, yet we could seemingly care less about protecting the patient's right to tell us when TO release records (thereby not harming the patient when by releasing the records to the right person at the right time). Confidentiality literally does not exist without it's flipside sibling - for example, if the practitioner merely protects the records from improper disclosure but does not permit the patient control over when the records ARE released, that's akin to no control whatsoever, because the psychologist makes all the release decisions (none). 

Records cannot be withheld from the patient / evaluee (whatever name you refer to them). Healthcare providers are risking both a license and HIPAA complaint, at the very least. In Florida, there have been six licensing sanctions against forensic mental health provides, just in the last 10 years.

www.FL-forensic.com